CAN THE SUBJECT-OF-A-LIFE CRITERION HELP

GRANT RIGHTS TO NON-PERSONS?

Lisa Bortolotti

1. Introduction

In ethics we often implicitly correlate what an individual is entitled to from a moral point of view with the complexity of the mental life of that individual. This correlation gains centre-stage in many attempts to answer the question whether we should accord rights or moral status to those individuals that lack the capacities required for personhood, such as the capacity for rational deliberation and self-consciousness.[1] I use the term “capacity” here and in the rest of the chapter to refer to powers that individuals might have and that they exercise when they engage in reasoning and gain awareness of their mental life. This is the established usage in the discussion on the conditions for personhood and the possible rights of different kinds of beings.

The formulation of a subject-of-a-life criterion for basic rights offers one possible account of the correlation between the entitlement to moral consideration and mental capacities.[2]Tom Regan’s argument for according rights to some non-human animals and some human non-persons is based on the notions of “subject of a life,” which raises some concerns. I argue in this chapter that the case for according rights or moral status to non-persons can be much more persuasive if rights or moral status are accorded to all and only those individuals that are intentional agents.

Why cannot we work with a criterion that is already available in the applied ethics literature, such as sentience? Sentience is not adequate as a criterion for basic rights or moral status, according to Regan, because sentient individuals do not have all they need to obtain moral status. Basic rights or moral status should be granted for Regan to those individuals who have interests and autonomy (in a sense that I elucidate in the next section). Sentient individuals might be able to feel pain and pleasure, but they might not have beliefs, desires and preferences. An individual’s possession of these intentional states is necessary to show that the individual has interests and autonomy in the relevant sense.

Here I discuss the relation between interests, autonomy and rights (or moral status) and conclude that the possession of intentional states and the capacity to initiate actions on the basis of those states are necessary conditionsfor having rights (or moral status).

2. The justification of the subject-of-a-life criterion

Regan recognizes that the best way to argue that some animals and human non-persons have rights is to show that they have morally relevant interests that need to be safeguarded. In other words, they are subjects of a life.

Individuals are subjects-of-a-life if they have beliefs and desires; perception, memory and a sense of the future, including their own future; an emotional life together with feelings of pleasure and pain; preference- and welfare-interests; the ability to initiate action in pursuit of their desires and goals; a psycho-physical identity over time; and an individual welfare in the sense that their experiential life fares well or ill for them, logically independently of their utility for others and logically independently of their being the object of anyone else’s interests.[3]

One can justify the requirements that individuals must satisfy in order to be granted basic rights or moral status on the basis of the relation between rights, interests and autonomy. Subjects of a life are sentient, as they are able to feel pleasure and pain, but also have other capacities. They have intentional states such as beliefs, desires, emotions and preferences, and they have the capacity to initiate action on the basis of those intentional states. These two elements, the possession of intentional states and the capacity for intentional action, seem to be the most relevant to the entitlement to basic rights, because they ground the ascription of what Regan calls “preference-autonomy” and “preference-interests.”

Regan followsImmanuel Kant in according rights to those individuals who are autonomous agents, but he thinks that the relevant notion of autonomy does not include the capacity for rational deliberation. All that is required is preference-autonomy. A dog and a very young child are preference-autonomous, as theyhave beliefs and desires and act in order to satisfy their desires on the basis of their beliefs. Moral agentsare autonomous in a richer sense, as they can abstract from their desires and deliberate on what they ought to do. They can also act against some of their desires in conformity with a law or principle that has normative force on them. All subjects of a life are preference-autonomous in the sense in which the dog and the child are. They have preferences and act on those preferences. Some subjects of a life also have the capacity for reflection and rational deliberation and qualify as persons, but Regan believes that this richer notion of autonomy is not required for being accorded rights.

Regan distinguishes between preference-interests and welfare-interests.[4]Preference-interests refer to those things we are actually interested in, whereas welfare-interests concern those things that are good for us, whether or not we have an interest in them. It might be in my bestinterests to go to bed early tonight as tomorrow I have an important meeting (welfare-interest), but I do not have aninterest in going to bed early tonight unless I have the right combination of beliefs and desires, like the belief that an early night would do me good and the desire to be in good shape tomorrow (preference-interest). It is evident that the possession of intentional states and the capacity to initiate action on the basis of those intentional states are required for individuals to have preference-interests.

The notions of preference-autonomy and preference-interests help justify the subject-of-a-life criterion as the criterion for the attribution of basic rights. Only beings with preference-interests can have rights, because only beings with interests can be benefited or harmed.[5]One can assume that having preference-interests requires having beliefs, desires and other intentional states and being able to act purposefully, but the possession of welfare-interestsshould not appearin the list of conditionsthat individuals need to meet in order to be subjects of a life. Here we come to the first problem with the subject-of-a-life criterion.

All individuals with preference-interests have their own welfare, but as Raymond Frey also observed[6], antsor plantscan have their own welfare and welfare-interests without having preference-interests. Individuals do not need to be sentient or to have beliefs and desires in order to have their own welfare. It might be in the interest of the ants inhabiting my front garden that I put off mowing the grass. But that does not require them to have any intentional state or tendency to preference-autonomous action.

By regarding the possession of welfare interests as one of the criteria for basic rightsormoral status, the ground shifts without justification from the capacities one must have in order to be the subject of a life to metaphysical considerations about what kind of an individual one is. Subjects of a life are described by Regan both in terms of the capacities they must have in order to have inherent value (e.g. possession of intentional states) and in terms of the kind of entities they are (e.g. possession of a psychophysical identity and an independent welfare).

A formulation based on cognitive capacities is useful in discriminating between individuals that are entitled to basic rights and individuals that are not, since the possession of such capacities has behavioral manifestations that can be observed and tested. Nonetheless, is difficult to establish what would count as evidence for the metaphysical status of some non-human animals as individuals with a psychophysical identity and an independent welfare. So, some of the requirements of the subject-of-a-life criterion are unhelpful for the practical purposes of identifying subjects of a life in controversial cases and difficult to justify from a moral point of view.

3. Empirical questions about the subject-of-a-life criterion

Regan states that subjects of a life have memory, a sense of their own future, intentional states about themselves and self-consciousness.[7] How plausible is it thatnon-human animals andseverely impaired humans can satisfy these requirements?

Mammalian animals perceive and to some extent represent their environment[8], but no conclusive evidence has been gathered for the claim that even great apes can remember specific events in their past experience. For years, the accepted view in comparative psychology has been that animals lack the kind of episodic memory that humans have. They retain the skills they have acquired, but they do not remember episodes as they happened to them.[9] This view hasrecently been challenged by studies conducted on birds,[10] great apes and other primates[11]. The studies are aimed at showing that some animals can engage in “mental time travel,” that is, they can go back to a past event with their minds.

It is probably early days for a verdict on whether there are any animalswith episodic memory, and comparative psychologists still debate the issue. Whether animals have a sense of their own future seems to be even more difficult to establish. Reiss (1998) has claimedthat the bottlenose dolphin exhibits “anticipatory behavior, an awareness of the contingencies of their past actions, and an awareness of the contingencies of future acts.”[12] Evidence for these cognitive achievements emerged in the context of “bubble ring” play in pools by captive dolphins.

Even the scientists advancing new hypotheses on episodic memory in great apes and a sense of the future in bottlenose dolphins and those who have argued for years in favor of animal consciousness are cautious in drawing conclusions about animal self-consciousness.[13] And those philosophers who are happy to ascribe intentional states to animals on the basis of their manifest behavior are not at all sure that it makes sense to talk about animal consciousness as if each animal were the unified subject of different experiences.[14]

For these reasons, the addition of memory and a sense of one’s own future to the list of those cognitive capacities that characterize subjects of a life is strategically surprising.Reganis not going to be able to achieve the dialectical goal of expanding the class of right-holders to include human non-persons and mammalian animals by requiring that subjects of a life have a memory of their past experiences and a sense of their own future. Inthe literature on moral status, awareness of one’s own past and future has always beenregarded asa mark of personhood.[15]

Subjects of a life are not persons because they don not need to be able to engage in rational deliberation and because they are not expected to exhibit moral agency. But self-consciousness and rational deliberation, two capacities that are conceptually distinct, might not be found independently from one another.One speculative but plausible idea is that part of what it is to have a notion of oneself as a unique individual is to feel on oneself the normative force of standards of rationality for thought or action. Some argue that in young children self-consciousness emerges approximately when they start using self-referring concepts of shame that might be seen as signs of incipient moral agency.[16]

4. Subjects of a life or intentional agents?

Regan’s contribution to the debate is significant no matter how we conceive our obligations to non-human animals and human non-persons.He aims at justifying the common intuition that we have direct moral obligations to non-persons. And he seems to be right inclaiming that sentience alone is not quite enough for the possession of those preference-autonomy and preference-interests which are a prerequisite for the entitlement to basic rights or direct moral consideration.Regan’s approach is promising, but the notion of “subjects of a life” does not seem to be what he needs to achieve the goal of providing a justification for according basic rights or moral status to non-persons.

As we saw in the first section, the possession ofpreference-interests, and the capacityfor initiating action are plausible prerequisites for having basic rights or moral status. In reformulating the criterion, we should focus on the cognitive capacities required for the possession of interests, such as the possession of beliefs, desires, emotional states, and preferences and the capacity to initiate action on the basis of those intentional states. All that would be necessary to revise Regan’s position is a shift from subjects of a life to intentional agents.

What is an intentional agent? An intentional agent is any system whose behavior we can predict via the ascription of beliefs, desires and other intentional states. An intentional agent typically acts on the basis of its beliefs and desires and can adapt to its environment by revising such beliefs and desires.In the literature on intentionality many authors(e.g. Donald Davidson, Daniel Dennett, Jane Heal) assume that intentional agents need to be, to some extent, rational deliberators. If that were the case, my appeal to intentional agents would not fare much better than Regan’s notion of “subject-of-a-life.” It would be almost indistinguishable from personhood.

But intentionality and rationality are not necessarily linked. The only sense in which an intentional agent needs to be rational is the sense in which at least some of its actions can be rationalized, that is, they can be seen as done for a reason. Suppose I saw a big black dog barking furiously on the pavement on my way to work this morning and I crossed the road to avoid him. Why did I cross the road? Not randomly, nor as a consequence of a spasm. I crossed the road because by doing so I was hoping to avoid the dog I was afraid of. My intention to avoid the dog was the reason for my action and my action can be rationalized by my intention. That does not mean that crossing the road was therational thing to do, or that my thoughts and actions need to satisfy any standards of rationality before I can be regarded as an intentional agent.[17]

Whereas persons needto be sensitive to the normative force of standards of rationality, and on occasion respond to them, intentional agents do not.Whereas persons need to be able to have beliefs and desires about themselves as individuals, in order to deliberate morally and to assess blame, praise and responsibility, intentional agents do not need to have a sense of themselves. They just need to have basic beliefs about their surrounding environment and to respond to the stimuli they are subject to with a view to satisfy their desires given their beliefs. Some intentional agents will be also persons, others will not. And that is why the introduction of the intentional-agent criterion seems to be perfectly suitable for the inclusion of some non-human animals and marginal humans in the class of right-holders. Those individuals that haveintentional states such as beliefs and desires and have the capacity to act on their beliefs and desires, have also preference-interests which contribute to their own welfare. By according to them basic rights or moral statuswe safeguard their morally relevant interests.

Let me consider another objection to the adoption of the intentional-agent criterion. Some philosophers talk about the intentional stance in purely instrumental terms. The idea is that any system (plants and simple artifacts included) whose behavior we could predict by using belief-and-desire talk is an intentional agent for the purposes of the prediction of its behavior, even if the system does not probably have any intentional states. In other words, the intentional stance would be just a matter of speech.[18] For instance, I could talk about my plant wanting water without really believing that my plant has any desires. If the intentional stance is used in this instrumental way, then the risk of adopting the intentional-agent criterion is that legitimate right-holders might multiply.

But the intentional stance is successful and really useful as a predictive strategy only when the behavior of the system we want to predict is complex enough to support the ascription of beliefs and desires. In the field of cognitive ethology and comparative psychology there have been fascinating attempts to devise tests to discriminate between situations in which a non-human animal acts on a belief with a determinate content and situations in which the ascription of the belief to that animalis unjustified. The difficulty in establishing what content to ascribe to the intentional states of a non-human, an infant or ahumanadult affected by dementia, can be explained by reference to how mind-reading works. We are generally good at ascribing beliefs and desires to other humans very much like ourselves because our mind-reading capacities depend on context-dependent heuristics. These heuristics are simple strategies, usually fast and accurate, that human use to get by in a complex environment. For instance, we would not ascribe to young children highly theoretical thoughts, because we do not expect them to have a wide range of conceptually sophisticated background beliefs. The better we know the circumstances in which agents operate, the better we can read their minds. The fact that we encounter difficulties in ascribing intentional states with a determinate content to non-persons might be due to our limitations as interpreters and not to their inability to form intentional states. Our struggles do not rule out that non-persons can exhibit a behavior of the right complexity to justify the ascription of some intentional states. Where our natural talents as mind-readers fail, science can help. A more careful observation of the behavioral responses ofnon-human animals in some contexts can contribute to refining our attempt to ascribing preferences to them.